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  • N. W. Barber, The United Kingdom Constitution: An Introduction (Oxford University Press 2022)
  • P Eleftheriadis, 'Elevent Types of post-Brexit EU Law ' (2021) Oxford Business Law Blog
    The United Kingdom and the European Union agreed on Christmas Eve a new Trade and Cooperation Agreement. This treaty has replaced the rules of the single market in the UK (with the exception of Northern Ireland and Gibraltar). It is, however, only one part of EU law in the United Kingdom. EU law in the UK is now a matter of a multiple and overlapping legal instruments. Post-Brexit legal arrangements are very complex, perhaps surprisingly so. Although it is not possible to set out these matters here in detail, it would perhaps be worth listing the eleven types of EU law operating in the United Kingdom after Brexit
  • N. W. Barber, 'Forward (Public Law)' (2021) The Oxford Undergraduate Law Journal
  • P Eleftheriadis, 'Rights in the Balance' (2021) forthcoming
  • N. W. Barber, 'The Significance of the Common Understanding in Legal Theory (reprint) ' in D. Kyritsis and S. Lakin (eds), The Methodology of Constitutional Theory (Hart 2021) (forthcoming)
  • S Enchelmaier, '“Free Movement of Goods: Evolution and Intelligent Design In the Foundations Of The European Union”' in P Craig & G de Búrca (ed), The Evolution of EU Law (OUP 2021)
  • JA Armour, J Gordon and G Min, 'Taking Compliance Seriously' (2020) 36 Yale Journal on Regulation 1
    How can we ensure corporations play by the “rules of the game”—that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives—through discounts to penalties—to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance. We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon is truncated to the date they expect to liquidate stock. Moreover, investors find it hard to value compliance programs because firms routinely disclose little or nothing about their compliance activities. We show that stock-compensated managers prefer not to disclose compliance because such disclosure can reveal private information about a firm’s propensity to misconduct. As a result, both managers and markets are likely myopic about compliance. How can this problem be resolved for the benefit of society and shareholders? Boards of directors are supposed to act as monitors to control managerial agency costs. We show that the increasing use of stock-based compensation for directors, justified as a means of encouraging more vigorous oversight of business decisions, also has a corrosive effect on boards’ monitoring incentives for compliance. Directors in theory face liability for compliance oversight failures, but only if so egregious as to amount to bad faith. We argue that this standard of liability, established in an era before ubiquitous stock-based compensation for both managers and directors, has now become too lax. We propose more assertive directors’ liability for compliance failures, limited in quantum to a proportionate clawback of stock-based pay. This would add power to the alignment of directors’ interests with those of shareholders—directors would stand to lose more than just a decrease in the value of their stock in the event of a compliance failure—but limiting liability in this way would avoid pushing boards to overinvest in compliance. We outline ways in which this proposal could be implemented either by shareholder proposals or judicial innovation.
  • E Fisher, 'Executive Environmental Law' (2020) 83 Modern Law Review 163
    DOI: 10.1111/1468-2230.12456
    The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.
    ISBN: 1468-2230
  • P Eleftheriadis, A Union of Peoples: Europe as a Community of Principle (Oxford University Press 2020)
    Many political and legal philosophers compare the EU to a federal union and believe its basic laws should be subject to the standards of constitutional law, and thus find it lacking or incomplete. This book proposes a rival theory: that the substance of EU law is not constitutional, but international, and provides a close examination of the treaties and the precedents of the European courts to explore this concept further. Just like international law, EU law applies primarily to the relations between member states, who have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this 'internationalist' view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, freely organizing their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness.
    ISBN: 9780198854173
  • JA Armour and M Sako, 'AI-enabled business models in legal services: from traditional law firms to next-generation law companies?' (2020) 7 Journal of Professions and Organization 27
    DOI: doi.org/10.1093/jpo/joaa001
    What will happen to law firms and the legal profession when the use of artificial intelligence (AI) becomes prevalent in legal services? We address this question by considering three related levels of analysis: tasks, business models, and organizations. First, we review AI’s technical capabilities in relation to tasks, to identify contexts where it is likely to replace or augment humans. AI is capable of doing some, but not all, legal tasks better than lawyers and is augmented by multidisciplinary human inputs. Second, we identify new business models for creating value in legal services by applying AI. These differ from law firms’ traditional legal advisory business model, because they require technological (non-human) assets and multidisciplinary human inputs. Third, we analyze the organizational structure that complements the old and new business models: the professional partnership (P2) is well-adapted to delivering the legal advisory business model, but the centralized management, access to outside capital, and employee incentives offered by the corporate form appear better to complement the new AI-enabled business models. Some law firms are experimenting with pursuing new and old business models in parallel. However, differences in complements create conflicts when business models are combined. These conflicts are partially externalized via contracting and segregated and realigned via vertical integration. Our analysis suggests that law firm experimentation with aligning different business models to distinct organizational entities, along with ethical concerns, will affect the extent to which the legal profession will become ‘hybrid professionals’.
    ISBN: 2051-8811
  • P Eleftheriadis, 'Corrective Justice Among States' (2020) 2 Ius Cogens 7
    DOI: 10.1007/s42439-019-00013-x
    The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states and in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes, but only fairness in the risks and opportunities undertaken by the parties to any cooperative agreement. Corrective justice requires redress in cases of loss caused by unfairness. An important illustration of corrective justice at work is the Eurozone’s response to the financial crisis. The assistance offered to the states most burdened by financial turmoil can be best interpreted not as an attempt to arrive at fair shares, but as an attempt to remedy the losses unfairly caused to some states by the mistakes made by all of them, when designing the Eurozone’s architecture.
    ISBN: ISSN: 2524-3977
  • L Enriques, Alessandro Romano and T Wetzer, 'Network-Sensitive Financial Regulation' (2020) 45 The Journal of Corporation Law 351
    Shocks that hit part of the financial system, such as the subprime mortgage market in 2007, can propagate through a complex network of interconnections among financial and non-financial institutions. As the financial crisis of 2007-2009 has shown, the consequences for the entire economy of such systemic risk materializing can be catastrophic. Following the crisis, economists and policymakers have become increasingly aware that the structure of the financial system is a key determinant of systemic risk. A wide consensus now exists among them that network theory is the natural framework for studying systemic risk. Yet, most of the existing rules in financial regulation are still “atomistic,” in that they fail to incorporate the fact that each individual institution is part of a wider network. This Article shows that policies building upon insights from network theory (network-sensitive policies) can address systemic risk more effectively than traditional atomistic policies, also in areas where an atomistic approach would seem natural, such as the corporate governance of systemically important financial institutions. In particular, we consider four prescriptions for the governance of systemically important institutions (one on directors’ liability, two on executive compensation and one on failing financial institutions’ shareholders appraisal rights in mergers) and show how making them network-sensitive would both increase their effectiveness in taming systemic risk and better calibrate their impact on individual institutions.
    ISBN: 0360-795X
  • S Fredman, ' Tolerating the Intolerant: Religious Freedom, Complicity, and the Right to Equality ' (2020) Oxford Journal of Religion and the Law 1
    DOI: https://doi.org/10.1093/ojlr/rwaa017
    Tolerance has always been a central principle underpinning freedom of religion. But what if a person’s deeply held beliefs include intolerance of others’ rights or freedoms? Does tolerance of religious difference include tolerating intolerant behaviours? The paradox of tolerance has been thrown into relief by recent case-law on ‘complicity’ claims by religious adherents. Complicity claims assert that freedom of religion includes the right to exemptions from laws which the claimant regards as making her complicit in the sinful behaviour of others. Accommodating such claims can be stigmatic and demeaning of third parties. This paper argues that, in the context of complicity claims, neither tolerance nor neutrality can determine what weight to be given to the conflicting interests. Rather, they operate to disguise background value judgements. Instead, a proportionality analysis should be applied which is based on a hierarchy of values which expressly locates itself in substantive equality. Using a multi-dimensional conception of the right to substantive equality, the paper examines recent case-law on complicity claims in the US, UK, Canada and under the ECHR. Part II sets up the analytic framework. Parts III and IV apply the analysis to complicity claims in relation to LGBTQI and reproductive rights respectively.
  • L Enriques and W-G Ringe, 'Bank-fintech partnerships, outsourcing arrangements and the case for a mentorship regime' (2020) 15 Capital Markets Law Journal 375
    DOI: https://doi.org/10.1093/cmlj/kmaa019
    Fintech firms, once seen as ‘disruptors’ of the traditional banking world, are now increasingly seen as attractive partners for established financial institutions. Such partnership agreements come in different forms and contexts, but most share the goals of outsourcing key banking functions and facilitating market entry for new market players while overcoming relatively tough regulatory hurdles. Yet such arrangements, while generally to be welcomed, pose a number of regulatory problems, in particular concerning the effective supervision of fintechs that operate outside of the direct purview of regulatory authorities. Questions of enforcement and effective supervision emerge, which may ultimately result in problems regarding market stability and systemic risk. Regulatory sandboxes represent one attempt to address these problems but may fail to do so and are often ineffective or unavailable. Other similar solutions, such as fintech charters and umbrella firms, may help but, similarly, provide an imperfect solution. Against this backdrop, we make the case for a ‘mentorship regime’, which provides for a reliable regulatory framework for partnership agreements between fintech firms and established banks. This would allow for a de facto ‘private sandbox’ where experienced firms could mentor new startups and help them to cope with a complex regulatory process. At the same time, a state-backed mentorship plan would clear up the allocation of responsibilities, supervision competences, and liability questions and thus overcome problems of arbitrage and abuse. Ultimately, a mentorship regime may show the way to a new and more reliable future system of banking, making the well-stablished contractual practice of outsourcing banking services more reliable.
    ISBN: 1750-7227
  • JA Armour, B Garrett, J Gordon and G Min, 'Board Compliance' (2020) 104 Minnesota Law Review 101
    What role do corporate boards play in compliance? Compliance programs are internal enforcement programs, whereby firms train, monitor and discipline employees with respect to applicable laws and regulation. Corporate enforcement and compliance failures could not be more high-profile, and have placed boards in the position of responding to systemic problems. Both case law on boards’ fiduciary duties and guidance from prosecutors suggest that the board should have a continuing role in overseeing compliance activity. Yet very little is actually known about the role of boards in compliance. This paper offers the first empirical account of public companies’ engagement with compliance at the board level, drawing on director-level data from BoardEx and data on federal organizational prosecutions from the Duke University and University of Virginia Corporate Prosecution Registry. We find that, despite a standard account that compliance has boomed, few boards actually adopt compliance committees. Less than five per cent of U.S. public companies have done so, although the proportion has grown steadily over time. We use our data to explore why boards establish compliance committees. Our results suggest that there is room for more constructive engagement with compliance by many boards. We conclude by recommending ways in which board compliance might be facilitated or encouraged: reconsidering norms about board size and independence, enhancing accountability of directors to regulators, and tightening state law fiduciary duties regarding oversight.
  • P Eleftheriadis, 'Book Review: EU Legal Acts ' (2020) Common Market Law Review [Review]
  • P P Craig, 'Brexit a Drama: The Endgame—Part I' (2020) 45 European Law Review 163
  • Maurice Stucke and AE Ezrachi, Competition Overdose - How Free Market Mythology Transformed Us from Citizen Kings to Market Servants (HarperCollins 2020)
    Using dozens of vivid examples to show how society overprescribed competition as a solution and when unbridled rivalry hurts consumers, kills entrepreneurship, and increases economic inequality, two free-market thinkers diagnose the sickness caused by competition overdose and provide remedies that will promote sustainable growth and progress for everyone, not just wealthy shareholders and those at the top. Whatever illness our society suffers, competition is the remedy. Do we want better schools for our children? Cheaper prices for everything? More choices in the marketplace? The answer is always: Increase competition. Yet, many of us are unhappy with the results. We think we’re paying less, but we’re getting much less. Our food has undeclared additives (or worse), our drinking water contains toxic chemicals, our hotel bills reveal surprise additions, our kids’ schools are failing, our activities are tracked so that advertisers can target us with relentless promotions. All will be cured, we are told, by increasing the competitive pressure and defanging the bloated regulatory state. In a captivating exposé, Maurice E. Stucke and Ariel Ezrachi show how we are falling prey to greed, chicanery, and cronyism. Refuting the almost religious belief in rivalry as the vehicle for prosperity, the authors identify the powerful corporations, lobbyists, and lawmakers responsible for pushing this toxic competition—and argue instead for a healthier, even nobler, form of competition. Competition Overdose diagnoses the disease—and provides a cure for it. The book was listed as one of Inc. Magazine top business books you need to read in 2020 and one of Publishers Weekly Top 10 Business & Economics books for Spring 2020.
  • L Enriques and D Zetzsche, 'Corporate Technologies and the Tech Nirvana Fallacy' (2020) 72 Hastings Law Journal 55
    This Article introduces the term Corporate Technologies (“CorpTech”) to refer to the use of distributed ledgers, smart contracts, Big Data analytics, artificial intelligence and machine learning in the corporate context and analyzes the impact of CorpTech on the future of corporate boards. We focus on the tech manifestation of agency problems within corporations and identify—after considering possible market, governance, and regulatory solutions—elements of a governance framework for the CorpTech age. In particular, we take on a prediction often found in the literature, namely that CorpTech has the potential to solve a number of corporate governance problems for good and even make boards of directors redundant. We argue that this claim is based on what we call the “tech nirvana fallacy,” or the tendency of comparing supposedly perfect machines with failure-prone humans. The inherent features of technology and corporate governance reveal that even well-programmed CorpTech leaves the core issue of corporate governance—conflicts of interest among the relevant corporate stakeholders—untouched. In the Corptech age, the key question becomes: “is the human being that selects or controls the firm’s tech conflicted?” If so, CorpTech itself will be tainted. In fact, the problems arising from the transition to a CorpTech-dominated governance environment may, in the short-term, make things even worse: insufficient understanding of the promise and perils of CorpTech and over-confidence therein may even aggravate agency problems within firms.
    ISBN: 0017-8322
  • P Eleftheriadis, 'Cosmopolitan Legitimacy' in Jorge Fabra (ed), Jurisprudence in a Globalized World (Edward Elgar 2020)
  • P P Craig and M Markakis, 'EMU Reform' in F Amtenbrink and C Hermann (eds), EU Law of Economic and Monetary Union (Oxford University Press 2020)
  • N. W. Barber, 'Entrenchment' in R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press 2020) (forthcoming)
  • P P Craig and G de Burca , EU Law, Text, Cases and Materials (7th edn Oxford University Press 2020)

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